P.K. Musahary, J.:— This appeal has been preferred from jail by the convict appellant against the judgment dated 29.9.2007 rendered by the learned Sessions Judge, Lakhimpur, North Lakhimpur, in Sessions Case No. 58(NL)/2006 convicting him under Section 302IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 2000/-(Rupees two thousand), in default, R.I. for 3(three) months. 2. The story projected by the prosecution is founded on a written FIR lodged by one Sri Jibon Chutia on 4.2.1986, wherein it has been alleged that on 3.2.06, Sri Likheswar Chutia, son of Kamal Chutia, inflicted serious injury on Sabhai Chutia by a long machi dao in a paddy field and the injured was hospitalized for treatment. On registration of a crime being Lakhimpur P.S. Case No. 87/ 1986 under Section 326/34 IPC, the police investigated the case. During investigation the injured succumbed to his injuries at North Lakhimpur Civil Hospital. On the prayer made by the I.O., offence under Section 302 IPC was added against the accused persons Sri Likheswar Chutia and Kamal Chutia, who surrendered before the Court on 10.2.1986. 3. The I.O. held inquest over the dead body of Sabhai Chutia and sent the dead body for postmortem examination. After completion of the investigation, the I.O. submitted charge sheet against the above named accused persons under Section 326/34 IPC read with 302 IPC. The case was committed to the Court of Sessions under Section 207 CrPC and a case being Sessions Case No. 58(NL)/ 06 was registered. Upon consideration of the materials and documents on record and hearing the parties, charge under Section 302/34 IPC was framed against the accused persons. On being read over and explained, they pleaded not guilty and demanded trial. On conclusion of recording of evidence of prosecution witnesses, the accused persons were examined under Section 313 CrPC but they did not express their desire to adduce evidence in their defence. The learned Sessions Judge, at the conclusion of trial, recorded conviction and sentence as mentioned above. 4. We have heard Ms. M.B. Baruah, learned counsel, as Amicus Curiae for the appellant and Mr. K. D. Mazumdar, learned Additional P.P., Assam, appearing for the respondent State. 5. Ms. The learned Sessions Judge, at the conclusion of trial, recorded conviction and sentence as mentioned above. 4. We have heard Ms. M.B. Baruah, learned counsel, as Amicus Curiae for the appellant and Mr. K. D. Mazumdar, learned Additional P.P., Assam, appearing for the respondent State. 5. Ms. Baruah, learned Amicus Curiae, taking us through the evidence on record, submits that there is no eye witness to the alleged occurrence and the evidence on record is not sufficient to sustain the conviction and sentence as awarded by the learned trial Court. The conviction and sentence, according to the learned Amicus Curiae, is solely based on the evidence of PWs 1, 2 and 3, whom the prosecution projected as eye witnesses, but refused to support it and were declared hostile on the prayer made by the learned Public Prosecutor during trial. Further, she submits that no dying declaration of the deceased was recorded to support the prosecution case against the accused persons. 6. We have carefully gone through the evidence recorded by the learned trial Court. 7. One Jibon Chutia was examined as PW 1. He stated that the deceased Sabhai Chutia was his cousin, being the son of his father's elder brother. He, along with one Jogeswar Chutia, was cutting thatch near the place of occurrence which was at a distance of about a furlong. While they were just coming out of the "kheroni" (land covered with thatch) they heard a scream which attracted their attention. They saw a portion of his heart almost coming out as soon as they reached the injured Sabhai Chutia. They saw him lying. At the same time they saw the accused Likheswar Chutia and Kamal Chutia hurriedly going towards their house at 300 ft away from Sabhai. On being asked, the injured Sabhai told these two witnesses that the accused Likheswar inflicted injuries on his person with a dao. When they raised hue and cry, people turned up and the injured was removed to his house first and then to Lakhimpur Civil Hospital where he died after two days. 8. Informant Jogeswar Chutia was examined as PW 2. He stated that the accused Kamal was his own paternal uncle and the deceased Sabhai was the son of his father's elder brother. On the day of occurrence he went out along with Jibon Chutia for cutting thatch. 8. Informant Jogeswar Chutia was examined as PW 2. He stated that the accused Kamal was his own paternal uncle and the deceased Sabhai was the son of his father's elder brother. On the day of occurrence he went out along with Jibon Chutia for cutting thatch. He also stated that on hearing the scream they came forward and saw the accused Kamal Chutia armed with "dilabari" (heavy stick used for breaking earth clot). He saw a cut injury on the person of Sabhai from which blood was oozing. He also saw a "machi dao (convex dao)" in the hand of injured Sabhai. Seeing them, accused Kamal went away from the place of occurrence. Both PWs 1 and 2 raised hue and cry and removed the injured Sabhai to his house first and then to Lakhimpur Civil Hospital, where he died. He also stated that they saw accused Likheswar standing a little away from Kamal who was not holding anything in his hand. When enquired, the injured Sabhai told them that Likheswar inflicted the cut injury. 9. Smt. Chenikon Chutia was examined as PW 4. She is the wife of the deceased. She stated that on the day of occurrence her husband went to the paddy field taking a dao in his hand for cutting grass. Later on, on receipt of information that the accused Kamal and Likheswar cut her husband, she came to the paddy field and found her husband lying unconscious. Her husband was taken to Lakhimpur Civil Hospital where he expired. She had not seen the occurrence herself. P Ws 5, 6 and 7 are official witnesses being the medical and police officers. 10. The star witnesses of the prosecution, namely, P Ws 1 and 2, in cross examination, however, stated before the Court something which were not in support of the prosecution. P W 1 stated that he had seen the deceased Sabhai altercating with the convict appellant Likheswar over the boundary of their land. At the same time, he denied that he ever stated before the police that taking a long machi dao, the convict charged the deceased and inflicted a blow with the said dao on his chest. He also denied that he ever stated before the police that the other accused Kamal, father of Likheswar, who was working at the paddy field, assaulted Sabhai with a "dilabari". He also denied that he ever stated before the police that the other accused Kamal, father of Likheswar, who was working at the paddy field, assaulted Sabhai with a "dilabari". At that stage the learned P.P. requested the Court to declare PW 1 as hostile. On being declared hostile and on being cross examined, P W 1 again denied that he ever saw any altercation taking place between the deceased Sabhai and convict Likheswar over a boundary of their land. He even denied to have seen the convict Likheswar cutting Sabhai with a machi dao. Similarly, he also denied that he saw accused Kamal assaulting Sabhai with a "dilabari". He denied that he ever stated before the police about the same. This witness categorically stated that he had not seen the occurrence with his own eyes. However he reiterated that the parties had dispute over of the boundary. At the end of cross examination PW 1 denied the suggestion that the deceased did not tell him who had cut him (Sabhai). He also denied the suggestion that the deceased did not tell him that Likheswar did not cut him. In reply to the last suggestion he stated that "this is not true that we did not tell police that Sabhai had told us that Likheswar had cut him." He denied to have seen Likheswar inflicting a dao blow on Sabhai on his chest and he could see the intestine coming out. He denied that he ever told police that he had seen the accused Kamal assaulting the injured Sabhai. As this witness refused to support the prosecution case, on the prayer made by the learned P.P., he was declared hostile. On being cross examined by the prosecution counsel, he reaffirmed his earlier statement that he had not seen the convict Likheswar cutting Sabhai and accused Kamal assaulting Sabhai with a "dilabari". He further stated that he did not tell police that Likheswar had cut Sabhai and Kamal assaulted him with a "dilabari". He categorically stated that he had not seen any such occurrence. He reaffirmed that both the parties had a dispute over the boundary. 11. PW 6, Sri K. Chandreswar Singha, is the first I.O., who investigated the case. He stated that on being entrusted with the investigation, he visited the North Lakhimpur Civil Hospital and placed requisition for medical examination report of the injured Sabhai Chutia. He reaffirmed that both the parties had a dispute over the boundary. 11. PW 6, Sri K. Chandreswar Singha, is the first I.O., who investigated the case. He stated that on being entrusted with the investigation, he visited the North Lakhimpur Civil Hospital and placed requisition for medical examination report of the injured Sabhai Chutia. He recorded his statement under Section 161 CrPC which was proved and marked as Ext. 4. He visited the place of occurrence, recorded statement of witnesses and attempted to apprehend the accused persons who were evading arrest and later surrendered before Court. He took the accused persons on police remand and produced them in Court. Meanwhile, the injured succumbed to his injuries in the North Lakhimpur Civil Hospital. He was allowed by the Court to add offence under Section 302 IPC against the accused persons. He could not recover any incriminating article. He conducted inquest over the dead body and sent the dead body for post mortem examination but he failed to collect the same. In the meantime he was transferred. In his deposition he recorded the statement of witness Jibon Chutia and Jogeswar Chutia supporting the prosecution case. 12. As per evidence of PW 6 (I.O.), the witness Jibon Chutia (PW 1) stated before him that on the day of occurrence at about 3 P.M. while he along with one Jibon Chutia was cutting straw, they had seen quarrel between Likheswar and Sabhai quarreling over a boundary. He also stated before him that he had seen the accused Likheswar inflicting injury on the chest of Sabhai by a machi dao in the paddy field. He further stated before him that he had seen Kamal (father of the accused Likheswar) also beating Sabhai by a dilabari. PW 1 and Jogeswar separated Kamal therefrom. He recorded the statement of witness Jogeswar Chutia, who stated that he had seen the quarrel between accused Likheswar and deceased Sabhai in the paddy field over the boundary of their land. He also stated before him that while he, along with Jibon, was proceeding towards their house, he had seen accused Likheswar injuring Sabhai by means of a machi dao on the chest for which the stomach of the deceased Sabhai came outside. He again stated before him that he had seen accused Kamal beating Sabhai by a dilabari. He and Jibon separated Kamal therefrom. He again stated before him that he had seen accused Kamal beating Sabhai by a dilabari. He and Jibon separated Kamal therefrom. In cross examination, the I.O. stated clearly that he made no attempt to record the dying declaration of the injured Sabhai Chutia. He confirmed that at the time of making statement under Section 161 CrPC, the injured Sabhai Chutia stated that there was a dispute between him and the accused regarding boundary of land. 13. PW 7 is the second I.O. who submitted the charge sheet, Ext. 5. He stated that his predecessor almost completed the investigation except collection of the post mortem report in respect of the deceased from the North Lakhimpur Civil Hospital. He also tried his best to collect the postmortem report but he could not collect the same as it was not made available by the hospital authority. He tried to produce the inquest report but failed to collect the same. He could not submit the PM report as well as the inquest report as the records were already destroyed by the hospital authority. The defence declined to cross examine him. 14. PW 5 is Dr. Hem Chandra Baruah. He stated that he was working as Medical and Health Officer on 3.2.86 at North Lakhimpur Civil Hospital and on that day Sabhai Chutia, aged 40 years, was admitted in the hospital at about 10.30 P.M. The injured was examined by Dr. J. Deorah who was on night duty on that day. This P W 5 was working with Dr. J. Deorah and he knows his handwriting and signature. Dr. J. Deorah made entry about injuries found on the person of Sabhai Chutia in the Medico Legal Register of the Hospital. This witness stated that in the capacity of Superintendent of North Lakhimpur Civil Hospital at the relevant point of time, he issued a letter, Ext. 3, informing the I.O. about the receipt of the requisition for injury report of the deceased through police constable Sri Deben Borpatragohain. He furnished the injury report on the basis of medical register of North Lakhimpur Civil Hospital for the year 1986. Ext. 2(1) is the relevant entry of the injury recorded in the said register. The injuries found on the person of the deceased were recorded as under- " One incised wound over the abdomen protruding out intestine and stomach and liver. Ext. 2(1) is the relevant entry of the injury recorded in the said register. The injuries found on the person of the deceased were recorded as under- " One incised wound over the abdomen protruding out intestine and stomach and liver. The said injuries were sufficient in the ordinary course to cause death of a person." In cross examination, P W 5 stated that the injured sustained only one injury on hisstomach. The size of the wound in the abdomen was not reflected in the Medico Legal Register. However, he opined that the injury might have been caused due to fall on a sharp pointed object. 15. In passing the impugned judgment convicting and sentencing the convict appellant, the learned trial Court heavily relied upon the evidence of PWs 1 and 2 before whom the deceased, while he was lying in the injured condition, reportedly stated that he was assaulted by convict appellant by a machi dao. Such statement reportedly made by the deceased at the place of occurrence has been treated as the first dying declaration of the deceased before his death. The learned trial Court also found another dying declaration reportedly made by the deceased in the North Lakhimpur Civil Hospital before the I.O. (PW 6) which found place in the statement of the deceased recorded under Section 161 CrPC. The learned trial Court treated this statement under Section 161 CrPC as second dying declaration of the deceased. 16. The evidence is available on record to the effect that the deceased was found in the injured condition at the place of occurrence and PWs 1 and 2 were the persons who happened to reach the place of occurrence before anybody could reach. It was quite possible that an injured person would tell who had assaulted him and how he was assaulted. According to the evidence of PWs 1 and 2 some people arrived at the place of occurrence. The prosecution did not examine any person from those persons as independent witness who arrived at the place of occurrence and found the deceased lying in a seriously injured condition. Except PWs 1 and 2 nobody has stated that they heard the injured saying or disclosing that convict appellant inflicted injury on him (deceased). The prosecution did not examine any person from those persons as independent witness who arrived at the place of occurrence and found the deceased lying in a seriously injured condition. Except PWs 1 and 2 nobody has stated that they heard the injured saying or disclosing that convict appellant inflicted injury on him (deceased). The evidence of PWs 1 and 2 as regards making of dying declaration at the place of occurrence by the deceased has not been corroborated by any witness. The pertinent question that has arisen is whether in absence of such corroborated evidence of any independent witness or any other witnesses, it can be accepted that the deceased really made any dying declaration. Had there been any dying declaration, P W 1, Jibon Chutia, the informant would have mentioned the same in the FIR (Ext. 1) lodged by him. There is no indication in the FIR about such dying declaration, although the informant himself claimed that such dying declaration was made before him and PW 2 at the place of occurrence. The Ejahar is silent about the dying declaration. Of course, it is not necessary that every details of the incident including the dying declaration should be mentioned in the FIR. We find it difficult to accept the story of first dying declaration reportedly made at the place of occurrence because as per the evidence on record nobody had seen the act of assault by a dao or "dilabari" by the accused persons. In their evidence they have stated that they have not seen the accused persons holding any weapon like dao or lathi. They have rather stated that they had seen Sabhai(deceased) holding a dao in his hand. The fact that the deceased was carrying a dao has been proved by none else than his wife, PW 4, who categorically stated that her husband went out on the day of occurrence to paddy field with a dao in his hand in order to cut grass. As against it there is no evidence that the accused were carrying any dao or lathi or they were seen by anybody carrying such weapon. The evidence on record fails to persuade us to believe the story of existence of so called first dying declaration and to accept it as a valid piece of evidence for the purpose of convicting the appellant. 17. The evidence on record fails to persuade us to believe the story of existence of so called first dying declaration and to accept it as a valid piece of evidence for the purpose of convicting the appellant. 17. The prosecution further claims that there is second dying declaration purportedly made by the deceased in the hospital. As per the evidence of 1st I.O., PW 6, it was not recorded by the medical officer after examination or certification of his physical and medical condition of the injured as required under the law before recording the dying declaration. If any dying declaration is to be recorded in the hospital while the deceased is in the hospital, the deceased must be examined by a doctor and he must certify that the deceased is in a fit physical and mental condition for making such statement. After such certification only the statement can be recorded by a Magistrate or by a medical officer or any police official, preferably in his own language and his thumb impression should be taken thereon in presence of witnesses who should also put their signatures or thumb impressions thereon. The law requires no particular form for recording a dying declaration. The law also does not require that dying declaration must be recorded by a Magistrate. A dying declaration may be acceptable, if it was so prepared after medical examination of the deceased and certification of fitness by the doctor as stated above. In the present case there is no such dying declaration recorded after observing the aforesaid formalities or requirements of law. There is only a statement of the victim recorded by the I/O under Section 161 CrPC, while he visited the injured person in the hospital during investigation. Such statement recorded under Section 161 CrPC has no evidentiary value. It is not even a substantive piece of evidence. It can be used only for a very limited purpose i.e for confronting the witnesses. The I.O., PW 6, on being cross examined by the defence, clearly admitted that he made no attempt to record the dying declaration of the deceased. The record reveals that the alleged occurrence took place in the afternoon of 3.2.86. The injured was admitted in the North Lakhimpur Civil Hospital at 10.30 P.M. on the same day i.e. (3.2.86). The I.O., PW 6, on being cross examined by the defence, clearly admitted that he made no attempt to record the dying declaration of the deceased. The record reveals that the alleged occurrence took place in the afternoon of 3.2.86. The injured was admitted in the North Lakhimpur Civil Hospital at 10.30 P.M. on the same day i.e. (3.2.86). The matter was reported to police on 4.2.86 at 2.30 P.M. The injured person died in the hospital on 6.2.86. The police could have made arrangement for recording the dying declaration of the victim because he died after two days of his admission in the hospital and the police got sufficient time to requisition the service of a Magistrate for recording the dying declaration. Even if the service of a Magistrate was not possible, the I.O. could have requested the authority of the Civil Hospital to examine and give certificate as to physical and mental fitness of the injured person for making the dying declaration. In spite of sufficient time at hand, the I/O did not make any attempt to record the dying declaration in accordance with law. We are afraid that a mere statement recorded under Section 161 CrPC by the I/O could be treated or accepted as a dying declaration within the meaning of Section 32 (1) of the Indian Evidence Act, 1872. Under such facts and circumstances and evidence on record, we are bound to hold that there is no dying declaration in the eye of law which could be a basis for conviction and sentence. 18. In a recent case of Myladimmal Surendran & Ors. Vs. State of Kerala reported in (2010) 11SCC129, law has been settled that naming of assailants by the deceased victim to police cannot in itself sustain conviction of accused but can be used for the purpose of corroboration only. In the present case the evidence of PW 6, I.O., regarding making of dying declaration by the injured before his death, has not, in any manner, been corroborated by evidence of any prosecution witness. True it is that, as per settled law, non-mentioning of making oral dying declaration in the FIR lodged by a witness before whom dying declaration made, cannot be a ground for disbelieving it but the law of evidence requires that a testimony of the witness must inspire confidence of the Court. True it is that, as per settled law, non-mentioning of making oral dying declaration in the FIR lodged by a witness before whom dying declaration made, cannot be a ground for disbelieving it but the law of evidence requires that a testimony of the witness must inspire confidence of the Court. In a recent case reported in (2010) 12 SCC 24 , State of U.P. Vs. Krishna Master, it has been held that if the evidence given by the wife of the deceased stands unimpeached and consistent with evidence given by other witnesses, her evidence cannot be discarded simply because she is a related witness. Without disputing this legal position, the present case is to be considered in the light of the evidence of key witnesses, P Ws 1 and 2, who are admittedly related to the deceased. As discussed earlier, although these two witnesses initially supported the prosecution case they refused to support the prosecution at the trial for which the Court declared them hostile. The conduct of these two prosecution witnesses does not inspire confidence of the Court. We do not consider their evidence as consistent, reliable and truthful for affirming the impugned conviction and sentence. 19. The medical evidence speaks about a single incised wound over the abdomen/ stomach of the injured. As per the evidence of PW 5, Medical Officer, such injury might be caused due to fall on a sharp pointed object. As per the evidence on record there was rivalry between the two parties over the boundary of land and an altercation took place before the alleged occurrence. There is a clear evidence that the convict was seen bare handed, whereas, as per evidence of PW 4, wife of the deceased, he was carrying a dao. Under such circumstances, the Court may take the other view. Apparently there was a scuffle between the rival groups and it is possible that in such scuffle the victim fell on his own sharp dao sustaining the injury as recorded by the doctor in the hospital register. This view, although not supported by any material or evidence on record, cannot be discarded either. However in our opinion, it was not improbable or impossible because of the proved fact that it was the deceased himself who was holding the sharp dao. This view, although not supported by any material or evidence on record, cannot be discarded either. However in our opinion, it was not improbable or impossible because of the proved fact that it was the deceased himself who was holding the sharp dao. Probability of occurring such incident, namely receiving injury due to fall on a sharp pointed object like dao dampens the prosecution story of inflicting serious injury by convict appellant. This possibility is a pointer to defence stand that the prosecution miserably failed to prove its case against the appellant beyond all reasonable doubt. We are also so convinced that the prosecution failed to prove the charge beyond reasonable doubt; not to speak of beyond all reasonable doubt as required under the law. The conviction and sentence handed down on the appellant by the learned trial Court vide impugned judgment is, therefore, liable to be set aside and quashed. We accordingly set aside and quashed the same. The convict appellant is entitled to benefit of doubt which prosecution failed to remove. The appellant stands acquitted on benefit of doubt. He be set at liberty forthwith if his further detention is not required in connection with any other case. 20. We acknowledge with appreciation the legal assistance rendered by Ms. M.B. Baruah, as Amicus Curiae and direct the State Legal Services authority to pay her an amount of Rs. 5,000/- (five thousand) only as legal fee. 21. The appeal stands allowed. LCR may be returned. _____________